CLIMATE:

EPA girds for Texas permitting takeover

Gabriel Nelson, E&E reporter

Greenwire: Wednesday, December 22, 2010

U.S. EPA is a day away from seizing control of a Texas program that issues air pollution permits to power plants, refineries and other large sources of greenhouse gases, the agency said yesterday in a final warning to state officials.

If the Obama administration proceeds with the takeover -- a rare occurrence in the 40-year history of the Clean Air Act -- it would be the most dramatic step in EPA's feud with Texas Gov. Rick Perry (R) and his appointees, who have fought federal climate rules in court and have refused to limit the amount of planet-warming emissions released by Texas businesses.

With the first nationwide greenhouse gas regulations set to take effect on Jan. 2, 2011, the state's unwillingness to follow orders has left the Obama administration "no choice" but to take partial control of the nation's largest state-run air pollution program, EPA air chief Gina McCarthy wrote in a letter to Bryan Shaw, chairman of the Texas Commission on Environmental Quality.

She was referring to a rule, currently under White House review, that would retroactively reject a section of Texas' plan for handling air pollution and put a federal plan in its place.

The action will likely be taken tomorrow, giving federal officials the power to write permits for an estimated 167 projects next year, says the letter, which was obtained by Greenwire.

"Officials in Texas have made clear ... that they have no intention of implementing this portion of the federal air permitting program," McCarthy wrote. "The unwillingness of Texas state officials to implement this portion of the federal program leaves EPA no choice but to resume its role as the permitting authority, in order to assure that businesses in Texas are not subject to delays or potential legal challenges and are able to move forward with planned construction and expansion projects that will create jobs and otherwise benefit the state's and the nation's economy."

The showdown with Texas, the nation's most industrial state, has become a symbol of the political divide on the issue of climate change.

With a climate bill dead in Congress for the foreseeable future, the Obama administration has described the Clean Air Act as a sensible tool to reduce emissions that contribute to global warming. But Texas says that the regulations on carbon dioxide and other greenhouse gases won't help the environment and will drive up the prices that consumers pay for energy and virtually all other products and services.

Last week, just a few days after a court in Washington, D.C., decided not to stop EPA's new rules from taking effect, Perry took his case closer to home, filing an emergency petition in the federal appeals court with jurisdiction over Texas. A federal takeover would "deprive Texas of its right to manage its air resources," the state's filing said (Greenwire, Dec. 20).

More than a dozen other states are supporting lawsuits that challenge EPA's authority to regulate greenhouse gases, but only Texas has refused to follow the federal rules while the cases percolate in court. Everywhere else, officials are rushing to get a patchwork of state and federal regulations in place so that businesses across the country will be able to get permits once Jan. 2 rolls around.

Perry and his deputies have also accused the Obama administration of moving more quickly than the Clean Air Act allows, trampling on the rights of states.

Rather than giving Texas the usual amount of time to revise its own rules, TCEQ said in a statement, "EPA is now taking immediate control of a portion of the state's air permitting program under the guise of protecting Texas' businesses."